As an attorney, do I have access to an incapacitated person’s Will?
We all understand the importance of making a Will and yet most adults in England and Wales have still not done so. What happens if you need to make a Will or change an existing Will but no longer have the testamentary capacity and understanding to do so?
The Court of Protection has powers under the Mental Capacity Act 2005 to authorise the making of a statutory will. This has the same effect as any other Will but is made with the authority of the Court following an application by an interested party. This could be a family member, beneficiary, attorney, deputy or any other person with an interest in the Will being made.
There are numerous reasons for making a Will:
The application process is lengthy and time consuming but we have many years’ experience of preparing and submitting such applications. We will instruct an appropriate expert to prepare a medical report confirming lack of capacity and then work with you to prepare the application papers, draft a suitable Will and gather all the evidence in support. As specialist private client lawyers we can also advise you on the tax implications of what is proposed.
The Court will wish to be certain that any proposed Will is in the best interests of the person who lacks capacity. Their wishes and feelings are extremely important and we take the time to obtain these, as well as listen to your views and ensure these are all taken into account.
Where money is involved then it is sometimes the case that the various interested parties cannot reach an agreement and the application becomes contentious. We will represent your interests robustly and fight hard for the right outcome. However, we always consider alternative means of resolving the dispute and look for cost effective solutions. It does not help anyone to keep fighting for the sake of it.
Our highly rated specialist team has significant experience of both contentious and non-contentious applications and in providing pragmatic and workable solutions tailored to your individual needs.
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